Kessel family believes PH district was negligent

TRACI ANDERSON-WEISENBACH

Published 7:00 pm, Wednesday, November 9, 2005

PORT HOPE  Marie and Arnold Kessel believe Port Hope Community School inadequately handled two incidents involving their son, Derek. As parents, they believe the school shouldve done more to ensure Dereks right to be safe in school.

The Kessels are suing the Port Hope Community School district as well as past and present school board members, the superintendent and principal, the athletic director and varsity boys' basketball coach, a teacher, and current and former students. The Kessels filed the civil lawsuit in the federal district court in Bay City on Oct. 11. Their lawyer is Joni M. Fixel of East Lansing.

The plaintiffs seek compensatory damages as well as punitive and exemplary damages. They also demand a trial by jury, according to court records.

In the court documents, the Kessels describe two alleged incidents involving Derek, one concerning a firearm on school grounds and one concerning a sexual assault and battery in the school locker room. They also describe their attempts to get school officials to take action regarding these incidents.

Derek died Oct. 31 when he was killed in a single-vehicle accident on Moeller Road that night. The Huron County Sheriff's Office is continuing an investigation into the accident. Some people have said they believe the crash involved foul play due to the lawsuit.

In September, Marie and Arnold removed Derek from Port Hope Community School and enrolled him at North Huron Schools, where he was a senior.

According to court records, Derek was classified as a learning disabled student.

If one of the tallest, largest students can be forcibly attacked, what chances do the younger, weaker, or smaller students have against these types of attacks by other students? Fixel wrote in a press release when the lawsuit was filed. All parents in the Port Hope School district should be very concerned with the welfare of their child because we have no confidence that any student is safe in that district…these attacks go beyond horseplay and hazing.

The lawsuit

Court documents list nine counts against the defendants.

Count I is against the school as well as the past and present board members, Belt, Bowman, Judy Lubeski, Matt Woodke, and Athletic Director Don Pitts. The Kessels state the defendants deprived Derek of his U.S. Constitutional right to be free from physical abuse by students on school grounds under the due process clause of the fifth and 14th amendments.

Count II is against the school and states the school also violated Derek's constitutional right to be free from sexual and physical abuse. The Kessels believe the school failed to properly supervise and train employees to prevent the "foreseeable sexual and/or physical abuse" or to protect Derek from this abuse. The Kessels state the school failed to adequately investigate information brought to the attention of supervisors regarding alleged sexual and physical abuse and failed to take appropriate disciplinary or preventative action against students who allegedly committed the abuse. They also state the school failed to properly report the suspected abuse to the Department of Social Services and other appropriate authorities.

Count III is against the Port Hope school along with Bowman, Belt, and board members Chris Jahn, Raymond Schulte, Casey Jahn, Mike Gust, Karen Gust, David Koglin and Stanley Shipp. In this count, the Kessels state Derek qualified under the Individuals with Disabilities in Education Act (IDEA) and these defendants violated Derek's rights under this act by failing to properly supervise and train employees to provide a free appropriate education in the least restrictive environment for Derek as a student qualifying for IDEA.

Count IV is against the same defendants as Count III with the addition of former board members Lawrence Iseler and Sam Ingram. In this count, the Kessels state these defendants violated the Gun Free Schools Act of 1994 by failing to supervise employees to provide a gun free school zone and a safe school zone; failing to adequately investigate information brought to the attention of supervisors regarding an alleged firearm on school property; and failing to take appropriate disciplinary or preventative action against those students who were allegedly involved in the incident.

Count V and VI are against past and present students who were allegedly involved in the locker room incident. The Kessels state these students intended to "cause harmful or offensive contact with Derek and put him in imminent apprehension of such contact." Count V regards assault and Count VI regards battery.

Count VII is against students and states their actions constituted false imprisonment by not allowing him to leave the locker room of his own free will.

Count VIII, against the school, past and present board members as well as Belt, Bowman, Woodke, Pitts, and Lubeski, states the defendants are grossly negligent by engaging "in acts that were so reckless to demonstrate a substantial lack of concern for whether an injury to (Derek) resulted" and by demonstrating a lack of concern for a child protected under IDEA.

Count IX is against the same defendants as Count VIII and states the defendants failed to follow the enacted bylaws of the school district, which demonstrated a "substantial lack of concern as to whether injury to (Derek) resulted."

In the court records, the Kessels state the defendants violations of Dereks rights caused him to suffer damages including physical injuries, mental and emotional distress, pain and suffering, grief and anguish, and medical, counseling, educational and other expenses, loss of enjoyment of life and loss of earning capacity, all past, present, and future.

Leading up to

the lawsuit

The following information is taken from court records, specifically the lawsuit the Kessels filed. It outlinines their claims.

The court documents claim: The alleged firearm incident involving Derek took place Nov. 15, 2004. On this day, one of the students named in the lawsuit reached behind the front seat of his vehicle in the school parking lot to retrieve a firearm and pointed it at Derek's chest. Derek heard the gun click as the hammer was pulled back on the gun. The student with the gun laughed while another student in the vehicle looked on. Derek told his parents about the incident and said he was terrified he was going to be shot. He begged his parents not to advise Principal Michael Bowman about the incident because they were his teammates on the basketball team.

The alleged sexual assault incident occurred Feb. 15, 2005. Court records state Derek was in the high school locker room with several other students when he was attacked by four students. One of the students attempted to sodomize Derek by using a wooden dowel. A few other students stood by, laughed, and did nothing to help Derek. Derek informed his parents that evening of what happened and asked his parents not to say anything to any authorities because he didn't want to cause trouble.

Derek's parents attended a basketball game in late February and informed teacher Judy Lubeski of what had been done to Derek in the locker room. Later, Lubeski informed Marie and Arnold she had informed Bowman and requested an investigation into the incident.

In June, a Huron County Sheriff's Office representative asked Derek's parents about the locker room incident. Marie stated she didn't report it to the police because of the humiliation Derek felt. Sheriff's deputies asked for and received permission to interview Derek.

Principal Michael Bowman and Superintendent Scott Belt met with Derek and his parents in July and asked Derek about the firearm incident. The locker room incident was not discussed. That same month, Arnold and Marie spoke with current school board members, along with Bowman and Belt, during a private session of the school board about the two aforementioned incidents.

In August, Marie and Arnold Kessel filed a grievance with the school board. The Kessels demanded two students be expelled and civil action be brought against four other students/former students. They also asked that two other students and basketball coach Matt Woodke be reprimanded. They asked why the school did not contact the police about the locker room incident.

Belt responded to the grievance in a letter and said the administration was in the process of investigating the allegations the Kessels made. He wrote the Kessels another letter in September, stating the administration had completed the investigation and didn't find any evidence to confirm the Kessels' allegations. He said the school did find violations of school policies and appropriate action was taken. He said the Family Educational Rights and Privacy Act prohibited him from divulging information about the punishment of other students.